MARRIED FILING JOINTLY - FEDERAL RECOGNITION OF SAME-SEX MARRIAGES UNDER THE INTERNAL-REVENUE-CODE

An important goal of the modern American gay rights movement is the ri ght to marriage. The most promising path to this goal is the 1993 case of Baehr v. Lewin, in which the Hawaii Supreme Court held that restri ction of marriage to different-sex couples presumptively violated the state constitutional guarantee of equal protection of the law. Most ob servers expect that by 1998, the Court will render a final decision co nfirming the right of same-sex couples to marry.Once that decision is handed down, a new struggle will begin over interstate and federal rec ognition of same-sex marriages. The battle lines were drawn as this No te went to press with the enactment of the so-called interstate and fe deral recognition of same-sex marriages. The battle lines were drawn a s this Note went to press with the enactment of the so-called Defense of Marriage Act by Congress and a surge of similar legislation at the state level, although these new laws are vulnerable to constitutional challenge. This Note addresses one aspect of that struggle: federal in come, estate, and gift taxation. The author argues that recognition of same-sex marriages for federal taxation purposes would serve longstan ding policy goals of federal deference to state police power, uniform and consistent nationwide application of federal law, and respect for taxpayers' good-faith efforts to order their domestic affairs. Moreove r, the author argues that the Defense of Marriage Act, even if constit utional, will fail to achieve these goals and cannot prevent some degr ee of recognition of same-sex marriages. The Note concludes by proposi ng that same-sex marriages be recognized for federal tax purposes to s erve these important policies and to recognize the reality that same-s ex couples, like different-sex couples, will build economically interd ependent lives regardless what the law provides.